Strong opinions, weakly held

I already linked to this article over at Of Interest, but I think it deserves wider exposure. The Boston Globe has a lengthy report on President Bush’s use of so-called <a href=
http://www.boston.com/news/nation/washington/articles/2006/04/30/bush_challenges_hundreds_of_laws/?page=full”>signing statements, wherein the administration notes how it plans to treat laws that the President signs. If you can read this story and not feel utter revulsion for the state of your nation, you should probably find a dictatorship with a climate you enjoy and relocate there. Here’s how signing statements are used:

Bush is the first president in modern history who has never vetoed a bill, giving Congress no chance to override his judgments. Instead, he has signed every bill that reached his desk, often inviting the legislation’s sponsors to signing ceremonies at which he lavishes praise upon their work.

Then, after the media and the lawmakers have left the White House, Bush quietly files ”signing statements” — official documents in which a president lays out his legal interpretation of a bill for the federal bureaucracy to follow when implementing the new law. The statements are recorded in the federal register.

In his signing statements, Bush has repeatedly asserted that the Constitution gives him the right to ignore numerous sections of the bills — sometimes including provisions that were the subject of negotiations with Congress in order to get lawmakers to pass the bill. He has appended such statements to more than one of every 10 bills he has signed.

”He agrees to a compromise with members of Congress, and all of them are there for a public bill-signing ceremony, but then he takes back those compromises — and more often than not, without the Congress or the press or the public knowing what has happened,” said Christopher Kelley, a Miami University of Ohio political science professor who studies executive power.

Once again, President Bush and his administration love torturing people:

In October 2004, five months after the Abu Ghraib torture scandal in Iraq came to light, Congress passed a series of new rules and regulations for military prisons. Bush signed the provisions into law, then said he could ignore them all. One provision made clear that military lawyers can give their commanders independent advice on such issues as what would constitute torture. But Bush declared that military lawyers could not contradict his administration’s lawyers.

Other provisions required the Pentagon to retrain military prison guards on the requirements for humane treatment of detainees under the Geneva Conventions, to perform background checks on civilian contractors in Iraq, and to ban such contractors from performing ”security, intelligence, law enforcement, and criminal justice functions.” Bush reserved the right to ignore any of the requirements.

Here’s the bottom line:

David Golove, a New York University law professor who specializes in executive-power issues, said Bush has cast a cloud over ”the whole idea that there is a rule of law,” because no one can be certain of which laws Bush thinks are valid and which he thinks he can ignore.

”Where you have a president who is willing to declare vast quantities of the legislation that is passed during his term unconstitutional, it implies that he also thinks a very significant amount of the other laws that were already on the books before he became president are also unconstitutional,” Golove said.

The administration doesn’t respect the Supreme Court any more than it does Congress:

Bush has also challenged statutes in which Congress gave certain executive branch officials the power to act independently of the president. The Supreme Court has repeatedly endorsed the power of Congress to make such arrangements. For example, the court has upheld laws creating special prosecutors free of Justice Department oversight and insulating the board of the Federal Trade Commission from political interference.

Nonetheless, Bush has said in his signing statements that the Constitution lets him control any executive official, no matter what a statute passed by Congress might say.

While the Bush administration did not create the signing statement, it is an innovation of earlier power-grabbing Republicans:

But it was not until the mid-1980s, midway through the tenure of President Reagan, that it became common for the president to issue signing statements. The change came about after then-Attorney General Edwin Meese decided that signing statements could be used to increase the power of the president.

When interpreting an ambiguous law, courts often look at the statute’s legislative history, debate and testimony, to see what Congress intended it to mean. Meese realized that recording what the president thought the law meant in a signing statement might increase a president’s influence over future court rulings.

The Bush administration has just taken it to the next level. And to wrap things up, here’s why you really shouldn’t worry:

Defenders say the fact that Bush is reserving the right to disobey the laws does not necessarily mean he has gone on to disobey them.

How comforting. In spite of my prodigious quoting, you really should read the whole article. It’s chilling.

3 Comments

I don’t see how anyone can think that such powers are a good thing to have, unless he is under such delusions as to be psychotic.

Okay, suppose that Bush is Your Man and he is the best president evar. Well, some day someone you hate—I mean, the visceral, bile-rising, ‘will-move-to-Mexico-if-s/he-is-elected’ kind of hate—is President (Hillary Clinton? Ralf Nader?). Would you want that person to have unchecked power to

Before Reagan there were only 75 Signing Statements that had been created. Reagan, Bush Sr, and Clinton combined created 247 signing statements. Bush Jr, has done over 500. It seems like a pretty big loophole in the executive branch. I think it gives them too much power.

Actually, the documents don’t give the President any power at all. They don’t have the force and effect of law. They are simply statements that artfully give his statements following the passage of law. Just because they appear with the legislative history doesn’t actually make it legislative history. It is created post-enactment and does not get much legal weight outside of a courtroom. Only if used by a court as justification for an interpretation on a statute passed by Congress do they carry any weight at all. And even there, there is wide disagreement about whether the court is actually following the President’s interpretation or if it just happens to help the court make its OWN point that it would have come to without his statement.

The signing statements indeed seem to give the executive branch power, but truly, only in certain situations would they carry any real persuasive weight – such as a situation where the executive believes a statute is unconcstitutional. This push and pull, while it seems like mere power grabbing, is exactly what the Framers imagined when they created the three branches.

The real question then is not over the President’s use of them — he could issue 10,000 and it wouldn’t make any difference if a court didn’t rely on a single one of them. Issuing the statement or not, the President will execute the law as he will execute the law. Now we just know what he is thinking. The real question is what deference should courts give these statements when interpreting statutes?